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Tuesday, January 5, 2016

Friedrichs for Dummies

So you've been hearing about Friedrichs vs California Teachers Association, but not paying close attention. You know the unions are upset about it (but when aren't the unions upset about something), and you've heard that the Supreme Court is going to hear it, but you've put off learning more because it all seems so contentious and does anybody really want to seek out more conflict in the education world these days? Besides, you aren't in California.

But lately you've been thinking you should tune in and sort this out. Luckily for you, the Wall Street Journal gave one of the vocal-but-not-lead plaintiffs, Harlan Elrich, room to lay out his case, and we can use it as an entry point.

Elrich lays out his own teaching history, which is not unlike my own--over thirty years, local involvement, not always happy with union choices (though I suspect for different reasons).

Elrich is unhappy with the union's political bent, and though he's less direct about this, the actual direction of that bent. He doesn't want to give money to the union's political activities that work against his own leanings. By law, unions must allow members to opt-out of such contributions (here in PA, contributions for political activities are an opt-in fund separate from dues), but Elrich believes essentially that all union activities, right down to local negotiations, are political. In a sense, that's true-ish-- matters of policy that are set by elected officials cannot avoid a hint of politics, and in the world of education, that means everything.

But Elrich's definition of "political decisions he doesn't agree with" is hugely broad. He does not like that the union gets him too high a salary at the expense of either his economically struggling neighbors or conditions such as class size.

Elrich hits another recurring theme in Friedrich plaintiff complaints, which is the evils of tenure. He tells a story of a teacher who clearly should have been gone from the classroom, but because the union negotiated all these protections, he was not released. Plaintiff Friedrich tells a similar story about a physically abusive teacher who was protected by the union.

Unions are swell, Elrich concludes. But he doesn't want to forced to pay any fees to them. He is careful not to say "dues" because, in fact, the law does not require him to pay dues-- only the "fair share" of his local union's administrative and negotiating costs. And it's not just himself-- the plaintiffs don't want any teachers in the twenty-three states that allow fair share to be "forced" to pay fees.

You may be wondering how ten teachers end up bringing this case before the Supreme Court. The answer is a not-unusual bit of case-trolling, in this instance apparently by Supreme Alito. You can read a more thorough explanation here, but the basic process is this-- a justice lets it be known that he'd love to hear a case that would give him a chance to make new law or undo the old, and then a high-powered law firm goes and scares up some plaintiffs. In this case, the lawyering comes courtesy of the Center for Individual Rights, a right-of-right group that appears to see this case as a chance to toss public unions on the dustbin of history, and the skids have been greased to bring this right-to-work road show straight to the highest court in the land. The list of interested parties who have filed amicus briefs is instructive-- it includes the Cato Institute, the National Right To Work Legal Defense Foundation, Governor Susana Martinez, Governor Bruce Rauner, the Friedman Foundation for Educational Choice, and seventeen states including Michigan, Wisconsin, Atlanta and Georgia (whose legal departments are presumably supported by taxpayers who may not agree with this political action).

In short, this is largely a shadow play, one more battle between the big unions and the folks who want them to go away.

So what about Elrich's claims? After all, doesn't it sound reasonable not to be forced to pay money to an organization that you don't support as a term of employment?

Well, despite his worries about strains on district finances, he's not suing the state of California for its chronic underfunding of schools. And his concern for the cash-strapped families of his district doesn't seem to be accompanied by tales of how he donates his undeserved "extra" salary for their aid. Still, that's not necessarily something you trumpet in public.

No, the real whiff of bovine fecal matter comes, as always, from the tenure-and-job-protection argument. Is it impossible to fire a teacher because of union rules? No. No, it is not. It may require administrators to do some work. Fine; that's why they're paid the big bucks. My saying remains-- behind every teacher who shouldn't have a job is an administrator who isn't doing his.

And both arguments sit on the fiction that unions somehow negotiate contracts on their own, as if the local district has no presence, no seat at the negotiating table, certainly no high-priced labor attorney there to do the work for the board (during our contract talks, I never got over the surreal spectacle of a third-grade teacher at the end of her full work day squaring off against a big-time lawyer in a thousand dollar suit who had done nothing all day but get ready to take her on).

More importantly, there is a fundamental disconnect between the two parts of Elrich's argument. He complains about the union's political activities-- and then he goes on to describe the union negotiating for wages and conditions for its members. On the first point, I fully appreciate his dismay-- few things annoy me as much as my union calling to tell me for whom to vote without a legitimate explanation of why, and I don't need my union to take stands on issues unrelated to education. I haven't contributed a political dollar to the union in years not only because I don't like having them pick candidates for me, but because they are so bad at it (Yeah, Ed Rendell and Barack Obama worked out super-great for teachers) and because they insist on trading educational interests for a useless seat at the table, and I'll just cut short my rant to say that yes, when it comes to not caring for political choices of the union, I feel ya, bro. I've been a local union president, and I get all too well that local and teacher interests do not always overlap fully with the state and national union interests.

But then the jump. If Elrich doesn't it like it when his local negotiates wages or working conditions, exactly what does he think the union should do? What union activities would not offend him? Picnics? Hors D'oeuvres on the lawn?

Elrich is objecting to having the union perform its most basic function. He objections about union activities are like objecting to cupcakes for being made of cake and shaped like a cup. "I don't want to kill unions," he's saying. "I just wish they would stop doing all the things they exist to do."

Of course, part of the genius of this shadow play is that Elrich, Friedrich and the rest aren't saying they want to kill unions. They are perfectly fine if some people want to form a union. But of course, one other basic function of a union is that it includes everybody with skin in the game. A union that only includes some members of the group is not a union-- it's just a clique with dues and a logo. And a powerless one at that.

That has to be the expectation. Neither Friedrich nor Elrich or any of the rest seem to be arguing, "Look, you guys go ahead and negotiate a contract without me, and if that means my wages get cut in half or I'm the first to be laid off, I'm okay with that because at least I won't have to pay you dues." No, the expectation is that the union will be left hamstrung and unable to wreak the unjust havoc caused by organized workers.

If the union can't convince everybody to join and pay, doesn't that just mean it deserves to die because it can't sell its product. It's an appealing argument, but it assumes a level playing field that doesn't exist. Once the union is weakened, keeping it ineffectual is as easy as letting each new hire know that his job depends on his willingness to stay out of the union. The freedom to join or not join a union equals the freedom of the bosses to cut unions off through coercion.

And that's not just bad for teachers. Proponents of teacher union-busting could score huge points by demonstrating that right-to-work, no-union-here states are leading the nation in educational awesomeness, but they can't demonstrate that any more than they can demonstrate how to teach a Yeti to ride a unicorn.

The teacher unions, particularly on the state and national level, have some real, serious problems. But here's what we know-- at no point in the history of this country have employees ever been given a concession, a benefit, or better treatment and wages out of the sheer generosity and good spirit of the employers.We know, for instance, the history of how districts behave when they hire and fire at will-- they hire and fire for reasons from race to politics to won't-give-the-board-members-kid-an-A. And now the business model for privatizing education and strip-mining public schools for private enrichment depends on busting the unions.

The legal argument is one against "compelled speech"-- that being forced even to pay fees for a union (which is, at least in Pennsylvania, forced to represent every teacher in the local school system) is a violation of free speech rights. But if I want to be a practicing Christian, I have to go to a church where I my speech might be co-opted in favor of issues with which I disagree. If I want to be an American, I am compelled to pay taxes that support all manner of crap I disagree with. If I want to be a parent, I'm compelled to pay for my kid's support-- heck, if I want to have sex, I may end up becoming a parent even though I didn't want to and being compelled to pay support.

I get that losing part of your voice by becoming part of a collective may seem anti-American, but insisting that your money can only be spent the way you want it to be and you should never have to do anything that you don't absolutely agree with is anti-grown up.

But that's my logical argument, and this will be decided in a court of law. If Friedrich and her powerful backers win, the result will be a huge step toward transforming every state into a "right to work" state. The battle is going to be fought by the lawyers, but the casualties are going to be in the schools.

20 comments:

"...the fiction that unions somehow negotiate contracts on their own, as if the local district has no presence, no seat at the negotiating table, certainly no high-priced labor attorney there to do the work for the board..."

I'm amazed at the number of people on comment forums who seem to think that the unions control the school boards. It's SO foreign to my experience that I hardly know how to even reply to them. A really, really pro-teacher BOE is, at best, reasonable, with hostile being the much more common disposition toward teachers.

I have a question Peter. If the benefits of union membership are so awesome, why do you have to force teachers to be members? Should every business be required by law to join the Oil City Chamber Of Commerce? The Chamber is pretty awesome, and it does advocate for issues that help all businesses in the community. However, it must go out and convince each owner that the Chamber can add value to their work. No force required.

You emphasize how smart and awesome teachers are, yet when given a choice they walk away from you and your union. After the end of mandatory dues collection in Wisconsin, more than half the teachers quit the union. Teachers voted with their feet (and their money). Why do you think that is so?

Businesses that don't join the Chamber don't get the benefits of membership; they aren't included in promotions and they don't get the benefits of the chamber activities or advertising.

Teachers, on the other hand, get all the benefits of the union's work whether they belong or not. By law, unions must not only negotiate wage and benefit packages for non-member teachers, but if that teacher gets in a mess of trouble, the union must undertake the costly process of defending that teacher.

IOW, Teachers can have all the benefits of union membership for free, and given the lousy pay for beginning teachers, the desire to save a few bucks here and there are understandable.

If we had a system in which non-union teachers don't get negotiated raises or benefits, nor any of the job protection benefits that unions have negotiated, my guess is that fair share would suddenly look far less onerous. Then staying out of the union would mean risking your career and livelihood every day you went to work-- kind of like right to work states. But under the current system it's a win win-- you can skip joining without any risk or loss at all.

The loss of union teachers in Wisconsin is no surprise. The state had exactly the effect they desired-- they created a system under which unions cannot protect or work for their members. Under that scenario, of course people will not join. It would be like paying taxes to support a police department consisting of one old toothless guy with a pop gun.

"By law, unions must not only negotiate wage and benefit packages for non-member teachers, but if that teacher gets in a mess of trouble, the union must undertake the costly process of defending that teacher. "

Well there's another law that certainly should be changed. Requiring an organization to serve non-members is just as coercive as forcing a non-member to join an organization.

I'd also challenge your take on the Chamber. While there are specific private benefits for members, nonmembers also benefit from other Chamber services such as advocating infrastructure improvements, preparing and securing fed/state grants for community development projects, promoting location as a destination point for tourists and relocating business.

So yes, the Chamber has a free rider problem. Still no reason to use the law to require membership.

I certainly agree with Mr. Brand. Mr. Greene is also correct that a union ought not be obligated to provide services where they have not received payment.

It really shouldn't be that complicated. A union is providing a service (representation). There may be some group benefits (as is the case when many employees participate in health insurance). In both cases, the employee pays for a service. If they don't value the service, then they don't pay. If they don't pay, the service provider need not provide the service.

Anyone who wants to be a teacher without being a union member is free to apply to any private or parochial school, or to any of the charters that don't have unionized teachers. Those who want to work with the benefits of union membership choose to work in schools with unions. There is no right to a government job. Choose where to apply, just as I chose where I wanted to work. No need for SCOTUS to be involved.

Your argument implies that the public union itself is tantamount to the employer in the case of public schools. And this is simply not true. The fact that you seem to conflate the municipality (employer) with the union affirms the incestuous relationship.

You state "there is no right to a government job". Of course, you are correct. But again, you imply that by accepting a government job, you also accept compulsory union representation that goes along with it. Not only is this a monopoly (violating the Sherman Antitrust Act) but it also violates Freedoms of Speech and Assembly since the individual may want to speak for themselves and associate with others rather than the union.

I'd be interested to know if those strong unions in Europe also operate under similar "fair share" laws? Does anybody know and could give some examples? My sense is that they compete for membership and therefore are obligated to represent. I have a big issue with corrupt teacher unions andwhose leaders are often coopted by cushy non teaching positions and money. It is extremely if not impossible to change unions.

I'd be interested to know if those strong unions in Europe operate under similar "fair share" laws? Does anybody know and have examples? My sense is that those unions feel compelled to compete for membership and so are obligated to do the job of seriously representing their members. I have an issue with corrupt unions here in the U.S. and in particular, teachers' unions, where leaders are all too frequently sell out their members for cushy non-teaching jobs or $. It is extremely difficult if not impossible to switch unions.The process for getting out a bad union and bringing in a new one is practically impossible. I believe in Europe (Spain, France..), where unions are, in fact, much stronger, this is not the case.

I'd like to add the caveat - I'm not suggesting there isn't any corruption among European unions, but that those teachers unions (many in Latin America, as well) seem to be vying for membership, hold larger statewide and national strikes etc.. whereas ours all too frequently jump into bed (and endorse) with the big political power brokers before even getting solid commitments for support in areas of education. I think we need something in place to make our union leaders more accountable to members. Telling teachers that they need to "organize" to change leadership is not a viable nor practical solution. We need a structural system in place where our unions (at all levels- local, state, national) feel more compelledto represent.

All that said (above), credit where credit's due: Hats off off to CORE at Chicago Teachers' Union (and its leaders). I can't begin to imagine the sacrifices and hard work of those teachers who were able to turn around that local (CTU) into an admirable, respectable and serious union (on the local level).

In Spain they're usually affiliated with a political party, usually either the socialists (PSOE) or the Euro-communists, or maybe another leftist coalition. They don't really compete, you can't opt out, and sometimes there are complaints about leadership being in bed with the corporations, even on the local level. It's been a while since I've lived there though. I think France is probably similar, except that there everybody seems to strike at the drop of a hat. :) They're still much stronger in the private sector than they are here.

I agree with you about ours at the national level, though as you say, the locals seem to do better. I certainly wouldn't want to go back to the days when my mom was a young teacher and teachers didn't have unions and were extremely exploited.

Thank you Rebecca. I would like to know, however, if those unions are protected by laws similar to our 'fair share" laws, which not only give our large unions financial protection but also provide them with immunity against competing unions. Yes, I think in the past, in this country, unions made huge, important strides in improving working conditions. And there are some locals that continue the good fight. However, for those of us who've experienced union corruption first hand, it's hard to get excited about fighting to protect these union monopolies. I think progressive minded educators need to address the issue of union corruption in this country while standing strong behind the concept of unionism.

I think in Europe you simply have to join, no "fair share", just automatically pay full dues, and since they're affiliated with political parties, you certainly can't opt out of paying for political action.

I guess I don't understand how "fair share" laws "provide them with immunity against competing unions", but it seems like there ought to be a law that every 5 years we could vote on what union we wanted to represent us.